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CCR, working with our international partners, has filed several cases against former U.S. officials, including George W. Bush and former Secretary of Defense Donald Rumsfeld, for their role in the torture of detainees at Guantanamo, Abu Ghraib, Afghanistan and secret "black sites" around the globe. Because the United States is not a member of the International Criminal Court, and because the U.S. has failed to prosecute anyone up the chain of command for the abuses that occurred, the strongest options for justice are countries with laws that allow for the prosecution of serious international crimes like torture regardless of where they occurred or the nationality of the perpetrators or victims. These cases are often referred to as bring brought under the principle of "universal jurisdiction."
THE FRENCH INVESTIGATION INTO U.S. TORTURE AT GUANTANAMO
There has been an ongoing investigation in Paris, France into the torture and other serious mistreatment of three French citizens (Nizar Sassi, Mourad Benchellali and Khaled Ben Mustapha) who had been detained at Guantánamo. The jurisdiction of the instructing judge was confirmed by the appeals court in June 2005. (See the wikileaks cable discussing US concerns regarding the investigation). In January 2012, the former investigating magistrate, Sophie Clement, issued a formal request, or “letter rogatory”, to the United States. According to news reports, the French investigative judge requested access to the detention camp at Guantánamo Bay, to relevant documents as well as to all persons who had contact with the three victims during their detention there. The United States still has not replied. On February 26, 2014, the Center for Constitutional Rights and the European Center for Constitutional and Human Rights submitted an expert report, urging the French investigating magistate to issue a subpoena for former Guantánamo commander Geoffrey Miller. The open invesitgation is currently pending before Magistrate Sabine Kheris.
THE SPANISH INVESTIGATION INTO U.S. TORTURE
On April 27, 2009, Judge Baltasar Garzón issued a decision opening a preliminary investigation into what he termed “an authorized and systematic plan of torture and ill-treatment on persons deprived of their freedom without any charge and without the basic rights of any detainee, set out and required by applicable international conventions,” in US detention facilities. This decision related to the alleged torture and abuse of four former Guantánamo detainees: Hamed Abderrahman Ahmed, Ikassrien Lahcen, Jamiel Abdul Latif Al Banna and Omar Deghayes. All four men had previously been the subject of a criminal case in Spain, but were subsequently acquitted because of the use of torture and other forms of serious abuse to which they had been subjected during their detention and interrogations at Guantánamo; Judge Garzón had previously issued the extradition requests for Messrs Al Banna and Deghayes. Mr Ahmed is a Spanish citizen and Mr Ikassrien had been a Spanish resident for more than 13 years. The decision presents six pages of facts related to the torture and abuse the four men suffered including being held in cells made of chicken-wire in intense heat; being subjected to constant loud music, extreme temperatures and bright lights; constant interrogations without counsel; sexual assault; forced nakedness; threats of death; and severe beatings. The preliminary investigation did not name potential defendants, but included “possible material and instigating perpetrators, necessary collaborators and accomplices.” Judge Garzón found that the facts relate to violations under the Spanish Penal Code, the Third and Fourth Geneva Conventions, the Convention Against Torture, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Organic Law of the Judicial Power (Article 23.4).
On January 27, 2010, Judge Garzón issued a decision in which found that there exists jurisdiction over these cases in Spain and the complaints filed could proceed. Judge Garzón based this finding in part on the Spanish citizenship and residency in Spain of two of the victims, and also cited the previous relationship between the victims and Spain due to the request for their extradition issued by Spain. He found, however, that in the even in the absence of these links between the victims and Spain, jurisdiction over the case exists under the revised law (Organic Law 1/09 (November 3, 2009) (specifically, provisions (a) and (h)) because the violations alleged constitute crimes against humanity and are covered by international treaties, including the Third and Forth Geneva Conventions, the Convention Against Torture and the ICCPR. The decision also takes note of the Letters Rogatory that were sent to the United States and United Kingdom on June 15, 2009, inquiring about possible investigations into these cases as well as into the possibility that the victims could initiate criminal proceedings themselves. Neither country responded, and in light of the change to the law, Judge Garzón found the answers to those questions moot. Notably, Judge Garzón found that the burden lies on the defendant to establish that jurisdiction is not proper, and not upon the victims to prove that it is in cases raising such claims: “it cannot be accepted that the court or the victim have to perform detective work to know where there is a procedure open and to try to establish a negative fact.” Judge Garzón concluded: “It seems that when it is a matter of alleged offenses of torture and mistreatment carried out systematically and intended for a purpose, namely breaking the will of the victim while at the same time depriving him of the most elemental rights by means of techniques prohibited in national and international law, there is no doubt that they are included in article 23.4.”
We filed a complaint with the Paris prosecutor on October 25, 2007 charging Rumsfeld with ordering and authorizing torture. Rumsfeld was in Paris for a talk sponsored by Foreign Policy magazine, and left through a door connecting to the U.S. embassy to avoid journalists and human rights attorneys outside. Under French law, there is a duty to prosecute and investigate such complaints when the torturer is on French soil. The Paris case is particularly relevant because eight former Guantánamo detainees live in France.
CCR worked with the same partners to file earlier cases against Rumsfeld, Gonzales and other high-ranking U.S. officials for war crimes in Germany in 2004 and 2006. The German case was dismissed in April 2007 and is being appealed in October 2007.
CCR’s partners in the cases against Rumsfeld include the International Federation for Human Rights (FIDH), the Berlin-based European Center for Constitutional and Human Rights (ECCHR), and the French League for Human Rights.
December 12, 2008: this week, the Senate Armed Services Committee released a bi-partisan report almost two years in the making on the abuse of detainees in U.S. custody, proving, beyond dispute, that Donald Rumsfeld was directly responsible for abusive interrogation techniques used abroad.
Read the joint release from CCR, the International Federation for Human Rights (FIDH), and the European Center for Constitutional and Human Rights (ECCHR), about this development.
For a detailed discussion of the cases brought against Donald Rumsfeld under universal jurisdiction, see Katherine Gallagher, Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture, Journal of International Criminal Justice 2009 7: 1087-1116, available at: http://jicj.oxfordjournals.org/cgi/content/full/mqp077?ijkey=ATpEUsad4WQbfcB&keytype=ref